Manivannan v. Bochenek

          Keeley, Judge

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This matter before the Court is pursuant to the “Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim, ” (ECF No. 11), filed on January 8, 2018, by Defendants, Grace M. Bochenek, Susan Malie, and Isabel Cotero. On November 7, 2017, District Court Judge Irene M. Keeley entered an order, referring any motions filed in this case to the undersigned for written orders or report and recommendations. (ECF No. 5).

         I. Relevant Background

         Plaintiff, Dr. Ayyakkannu Manivannan, is a former employee of the United States Department of Energy (DOE) at the National Energy Technology Laboratory (NETL) in Morgantown, West Virginia. Defendant, Grace M. Bochenek, Ph.D., is the Director of NETL; Susan Malie is an Attorney-Advisor at NETL; and Defendant Isabel Cotero, is a federal contractor that was working at NETL at the time of the alleged acts addressed in Plaintiff's Complaint.

         Plaintiff was placed on administrative leave on August 12, 2015, during an internal investigation into allegations against him and was forbidden from accessing NETL property or spaces. (ECF No. 12 at 4). Upon the onset of administrative leave, Plaintiff's office was secured under lock and key, and controlled by the NETL security personnel. (ECF No. 12 at 4). No one was permitted access to the area without consultation with the NETL Office of Chief Counsel. Id. Plaintiff tendered his resignation on June 16, 2016, which became effective on June 17, 2016. Id. at 3.

         On September 1, 2016, Plaintiffs former office was assessed by his previous Supervisor, Dr. David Alman, who was accompanied by Mr. Mark Hunzeker, Attorney-Advisor in the Office of General Counsel, Mr. John Moore, a representative of the NETL security office, and Mr. Daniel Doyle, President of the American Federation of Government Employees. (Id. at 4). Prior to moving any items in the office, the security officer took photographs of the office, its condition, and its contents. Id. Dr. Alman then proceeded to identify and separate government property from Plaintiffs property. Id. Items identified as government property were returned to the NETL supply system management, and items identified as belonging to the Plaintiff remained secure in the office with access controlled by NETL security and the NETL Morgantown site manager. Id.

         On September 2, 2016, Mr. Hunzeker contacted Plaintiffs attorney to arrange the return of his personal property outside the sliding gate at the NETL property site. Id. at 5. On September 14, 2016, Plaintiffs attorney responded to Mr. Hunzeker with a request via electronic mail to allow Plaintiff, under security escort, to access the office in order to personally identify which items belonged to him and which items belonged to West Virginia University or NETL, citing that Plaintiff is the only individual with such detailed knowledge of his items. (ECF No. 17-3). Defendant claims that Mr. Hunzeker never received any responsive communications from Plaintiff or his attorney for arrangements. (ECF No. 12 at 5). Plaintiff claims that Mr. Hunzeker never responded to his attorney's September 14, 2016, request or made any other effort to communicate with Plaintiff or coordinate arrangements. (ECF No. 17 at 8).

         According to Mr. Hunzeker's Declaration, sometime in January 2017, two of Plaintiff's former colleagues, Dr. Richard L. Pineault and Mr. Daniel J. Haynes, requested permission to access Plaintiff's former office in order to search for government property. (ECF No. 12 at 5). While searching for government property they identified and separated property which they knew belonged to the Plaintiff and Dr. Pinault returned those items to the Plaintiff at the Plaintiff's residence later that day. (ECF No. 13-6 at 3). There was no production of a written inventory or requirement for Plaintiff's signature to sign for receipt upon this personal delivery. Id.

         According to the same Declaration by Mr. Hunzeker, by returning the property to the Plaintiff, Dr. Pinault and Mr. Haynes acted on their own initiative, without any notice to, or direction from, anyone in authority at NETL. Id. However, it is unclear whether or not Dr. Pinault and Mr. Haynes were alone when they conducted this search. Mr. Hunzeker's Declaration states that they were given a key by NETL security, indicating that the ensuing events were conducted without any security personnel present to witness the removal of any items or supervise the search. Id. On the other hand, the Defendant's Memorandum indicates that Dr. Pinault and Mr. Haynes were, “escorted by NETL security… [when they] … entered the office, ” which leads the court to presume that there was security personnel present during the search, who would have witnessed and supervised any removal of Plaintiff's personal items. (ECF No. 12 at 5).

         On February 3, 2017, Morgantown Police Officer Matt Beavers was dispatched to a “Talk With Officer” by public service at the Department of Energy. (ECF No. 17-4). Officer Beavers contacted both Plaintiff and Mr. Hunzeker and was told by Mr. Hunzeker that he would contact the supervisor at the Department of Energy and have them set up a time for Plaintiff to retrieve his personal items. (ECF No. 17-4). A week later, Officer Beaver was contacted by Plaintiff, who stated he had not heard from the Department of Energy. (ECF No. 17-4). Officer Beaver again contacted Mr. Hunzeker, who stated that he had contacted the Department of Energy and they had advised him that Plaintiff's property had already been returned. (ECF No. 17-4). Mr. Hunzeker did not inform Plaintiff or Plaintiff's attorney of the DOE's advisement regarding the return of the items between these two contacts with Officer Beaver, but advised Officer Beaver to advise Plaintiff to contact him about the items. (ECF No. 17-4).

         On March 2, 2017, Plaintiff's attorney was contacted by Mr. Hunzeker by electronic mail inquiring as to whether he was still Plaintiff's attorney and mentioned in that email that some items had been delivered to Plaintiff's residence on January 11, 2017, by an employee of the agency. (ECF No. 17-5). Plaintiff's attorney says that this was the first time he was made aware of any delivery that occurred. (ECF No. 17-5). Plaintiff had indicated to his attorney that due to the extensive delays on the part of NETL in responding, Plaintiff no longer intended to use his attorney's services on this issue. (ECF No. 17-5). Mr. Hunzeker was informed of this by the Plaintiff's attorney, via electronic mail on March 23, 2017. (ECF No. 17-5). There is no indication that Mr. Hunzeker reached out to Plaintiff after receiving knowledge of this information.

         The Plaintiff proceeding pro se filed a civil action in the Magistrate Court of Monongalia County, West Virginia, on April 5, 2017, against Dr. Grace Bochenek as Director of NETL. (ECF No. 23 at 2). Plaintiff solely requested relief from the court to retrieve his personal belongings in his former office at the NETL Morgantown site. Id. The case was removed to this Court on December 14, 2017, and assigned Civil Action No. 1:17cv216. However, prior to removal, the civil summons for that case arrived at NETL on or about May 3, 2017, by certified mail. (ECF No. 12 at 6). The summons was signed for by Defendant Isabel Cortero at the NETL mailroom. Id. Defendant Cortero's responsibilities included receipt and distribution of official mail. Id. Mailroom personnel then delivered the summons to the NETL Executive Suite where Susan Malie, Acting Chief Counsel at NETL, signed an internal correspondence accountability log. Id. Defendant Grace Bochenek stated that she was never personally served with a summons in this case and did not sign for one by certified mail. (ECF No. 1-5).

         Plaintiff submitted a Freedom of Information Act (FOIA) request in May 2017, requesting “records showing Mark Hunzeker arranging a visit for Dr. Manivannan with his supervisor to have him come to NETL to collect his personal belongings from his office, as well as other documents.” (ECF No. 17-9 at.4). On May 5, 2017, Plaintiff received a response that stated NETL conducted a search for responsive records, and no responsive records were found. (ECF 17-9 at 4). Plaintiff appealed this determination, challenging the adequacy of the search conducted under the FOIA. (ECF 17-9 at 6). On May 23, 2017, the Office of Hearings and Appeals (OHA) responded, saying that DOE/NETL is withdrawing its May 5, 2017, determination, which formed the basis for this appeal and that NETL indicated it will issue a new response letter after it conducts an additional search. (ECF No. 17-9 at 4). OHA thereby dismissed Plaintiff's FOIA Appeal as moot (OHA Case No. FIA -17-0012.) Id.

         On June 8, 2017, the Magistrate Court of Monongalia County ordered a Default Judgement in favor of Plaintiff. Following the judgment, Defendant Grace Bochenek appeared specially before the court by Helen Altmeyer on June 21, 2017, and moved to set aside the Default Judgment entered against her pursuant to Rule 10(e) and Rule 17 of the West Virginia Rules of Civil Procedure for Magistrate Courts on the basis that Defendant Bochenek was not properly served under West Virginia Rule 4 of the Rules of Civil Procedure for Trial Courts of Record. Defendant Bochenek also moved for dismissal on the grounds that Plaintiff failed to state a clear claim, requested relief in an amount outside the parameters for jurisdiction and authority for West Virginia Magistrate courts, and on the ground that Dr. Bochenek is not a proper Defendant in this case.

         On August 18, 2017, a hearing was held before Magistrate Hershel R. Mullins at the Monongalia County Magistrate Court, where Judge Mullins granted Defendant's motion to set aside the Default Judgment until the Plaintiff properly served the Defendant. The Magistrate Judge instructed the Plaintiff that he needed to produce an itemized monetary value on his belongings in question. (ECF No. 17 at 10).

         There is no indication that DOE/NETL followed up with an additional search or determination. Plaintiff made another FOIA Appeal on September 15, 2017, stating that NETL has still not issued determination letters with regards to the FOIA requests. (ECF No. 17-10). In response to this appeal on September 22, 2017, OHA informed Plaintiff that he has already appealed the May 5, 2017, determination and that because NETL withdrew that determination, stating its intention to issue a revised determination after conducting further inquiry, OHA accordingly dismissed Plaintiffs May 5, 2017, appeal. (ECF No. 17-10 at 2). OHA expressed that they had spoken with NETL, and that NETL has not issued a revised determination letter for the request, and thus, it has not yet denied a request for records in whole or in part, and the circumstance for an administrative appeal do not yet exist. (ECF No. 17-10 at 2). Since the DOE had not issued a final determination for these requests within the statutory time limit, OHA concluded that Plaintiff may be deemed to have exhausted his administrative remedies and may proceed with this matter in federal district court. (ECF No. 17-10 at 2).

         On November 6, 2017, Plaintiff filed this civil action in this Court against Defendants, Grace Bochenek, Susan Malie and Isabel Cotero, citing 5 USC § 552(a)(6)(C)(i) and alleging violations of 18 U.S.C. §§ 21, 1701 and 1702. (ECF No. 1). Defendants filed the pending “Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim” on January 8, 2018. (ECF No. 11). Plaintiff filed a response in opposition to the motion on January 22, 2018. (ECF No. 15). The undersigned held a hearing on the pending motion on February 8, 2018. (ECF No. 29).

         II. Defendants' Motion to Dismiss

         In their motion to dismiss, Defendants moved that Plaintiffs Complaint be dismissed arguing the Court lacks subject matter jurisdiction and the Complaint failed to state a claim upon which relief can be granted (ECF No. 11). Specifically, Defendant argues that (1) Plaintiff failed to show that the United States waived its sovereign immunity and thereby consented to be sued; (2) Plaintiffs demand for judgment does not reflect a request for documents pursuant to the Freedom of Information Act (FOIA), 5 US.C. § 552(a); (3) civil relief cannot be based upon the criminal statutes that Plaintiff cited in the Complaint; and (4) the Complaint does not request the provision of documents pursuant to the FOIA, 5 U.S.C. § 552(a). (ECF No. 12).

         III. Plaintiffs Response

         In response, Plaintiff largely provided a rendition of the facts of the case, highlighting contradictory statements made by NETL, and alleging Defendants have used various tactics to delay the progression of this case. Specifically, in response to Defendants' jurisdictional argument, Plaintiff asserted he has exhausted his administrative remedies concerning his FOIA request, as the OHA office informed him that because the DOE did not issue a final determination regarding his requests, within the statutory time ...